Our nonprofit is in a state that does not recognize protections for gay, lesbian, or transgender workers. What do we need to do now that the Supreme Court has decided this is a new protected class of workers?
Trying to Do the Right Thing
The case involved a consolidated review of three separate court of appeals’ decisions. In each of these cases, an employer allegedly fired a longtime employee simply for being gay or transgender.
- Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” of a county employee shortly after he began participating in a gay recreational softball league.
- Altitude Express fired Donald Zarda days after he mentioned being gay.
- G. & G.R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.”
Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on a number of protected classes, including sex.
Writing for the six-justice majority, Justice Gorsuch asserted that the text of Title VII was clear: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The Journey to Equality for LGBTQ+ Individuals
Although Bostock was a departure from earlier federal court employment discrimination decisions, there has been a slow expansion of LGBTQ+ rights recognized in U.S. Supreme Court cases:
- In 2013, S. v. Windsor found unconstitutional the withholding of benefits from service members in same-sex marriages.
- In 2015, Obergefell v. Hodges recognized that the fundamental right to marry is guaranteed to same-sex couples under both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the US Constitution.
The Court’s majority opinion in Bostock applied what constitutional scholars refer to as a “textualist” interpretation to determine the meaning of the phrase “because of … sex” as used in Title VII. The majority rejected the dissenting justices’ push to recognize the ordinary meaning of word “sex” at the time Title VII was passed to limit applicability to employment actions that did not place women on equal footing with men.
This “originalism” theory of legislative interpretation asserts that coverage of a statute should not be extended to situations that were not contemplated at the time the law was adopted. Instead, the majority recognized that laws are frequently applied to situations that may not have been contemplated at the time the law was created and that under the plain meaning of the words used in the text of the statute these three plaintiffs were undeniably treated discriminatorily because of their sex.
Looking at the evolution of Supreme Court decisions on what constitutes actionable sex discrimination under Title VII, the Bostock holding seems inevitable. Each decision evaluated whether the adverse action was related to the plaintiff’s sex or gender, and if the answer was yes, found liability.
- In 1986, Meritor Savings Bank v. Vinson made sexual harassment an illegal form of sex discrimination and established the standards for analyzing whether conduct or speech can create a hostile work environment for which an employer could be liable.
- In 1989, Price Waterhouse v. Hopkins held that sex stereotyping was actionable under Title VII, upholding a sex discrimination finding on behalf of a female employee who was denied partnership in part because she was not perceived as being feminine enough.
- In 1998, Oncale v. Sundowner Offshore Services, a male oil rig worker was able to bring workplace sex harassment claim alleging that he was repeatedly subjected to sexual harassment by his male-co-workers.
While many states and municipalities have prohibited discrimination on sexual orientation and/or gender identity or expression, beginning with a Wisconsin law in 1982, at the time of the Bostock decision, 27 states, including seven out of ten of the most populous states, did not recognize legal protections for employees on these bases. The multitude of “friend of the court” briefs filed in support of extending coverage of Title VII to LGBTQ+ employees included a brief filed by Morgan Stanley on behalf of over 200 national corporations who argued that banning LGBTQ+ discrimination is good for business. With this ruling, employers for which this is a new legal protection will need to update their employment policies and trainings.
Next Steps for Employers
While many large multi-state employers have likely already adopted uniform national policies prohibiting discrimination of LGBTQ+ workers, now all employers with more than 15 employees, the threshold for employer coverage under Title VII, should update their equal employment opportunity policies to include sexual orientation and sexual identity/expression as protected classes.
Since Title VII holds employers strictly liable for harassing behavior by their supervisory staff, employers should update their supervisory training to educate managers on impermissible conduct and best practices for support and inclusion of LGBTQ+ staff. Many nonprofits supporting the LGBTQ+ community consult with employers on training and resources and should be looked to for support regarding best practices for inclusion.
Moreover, since employers can be liable for policies that appear to be neutral but that have a disparate adverse impact on employees in a protected class, HR staff that monitor data on employee hiring, retention, promotion, and other employment policies or practices may want to track LGBTQ+ employees’ outcomes to the same extent it is done based on race, gender, age, or any other legally protected characteristic.
Ellen Aldridge, J.D. is an Employment Risk Manager for Nonprofits Insurance Alliance (NIA). Ellen has practiced labor and employment law for over 30 years as a litigator, negotiator, and adviser. Now in her 12th year with NIA, Ellen brings her experience to assist nonprofits in managing employment law risks and implementing best practices to motivate and support employees. Ellen received her B.A. in Government from University of San Francisco and her J.D. from Santa Clara University. On the weekends, you can find her in her garden.
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